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HTC wins swipe to unlock patent dispute against Apple (bbc.com)
168 points by saket123 on July 4, 2012 | hide | past | web | favorite | 87 comments

> The judge said that HTC's "arc unlock" feature - which also involves a predefined gesture along a path shown on-screen - would have infringed Apple's technology had it not been for a device released in 2004.

No, no, no. It is clearly obvious, the fact that there happens to also be prior art just adds insult to injury. If there had not been prior art, it would still be a frivolous, trivial patent.

This is exactly what's wrong with the patent system - you don't need prior art to tell you something is obvious and should be unpatentable.

I perfectly agree. But how do you prove in court that it was obvious? Most countries do have that paragraph in their legislation stating patents need to be non-obvious to someone of similar skill. But you almost never see that being tested in court, because how the hell do you prove it?

One of the big problems with the patent system is that it tries to implement solutions that are not viable in practice. There's no good, plain, clear, and unbiased way to prove a patent is indeed trivial. Even if we us hackers look at each other and agree that it's trivial.

I'd love to live in a world where innovators of non trivial solutions were rewarded money from others, without punishing these other innovators. But that's not possible to implement in practice!

Imagine someone patenting the vague "drop down menu" for websites. Even if others would put a new twist on the drop down menu, they could still be infringing on the person who had the original patent for a drop down menu, according to the current patent system.

That's kind of how Apple's slide to unlock patent is now. Even if they twist the heck out of that method, it might still fall within Apple's description for a "slide to unlock" method for which they got a patent.

Stuff like this shouldn't be allowed to be patented. But I think people tend to give Apple the benefit of the doubt much more than they deserve, because they were the ones changing the mobile industry in 2007, and now they somehow believe that anything that even remotely resembles what Apple has needs to belong to Apple and only to Apple. But that's not how things should work. Apple should just compete and try to stay 1 step ahead. That's how it's done in all the other industries. They don't try to squash every single one of their competitors with bogus lawsuits because they "compete" i.e. making something "similar".

I don't think this is so difficult. Something has to be nontrivial to practitioners in the relevant field, so just survey a few random software engineers - not some clerks at the patent office.

Pay them for their time, obviously, and that cost should come from the patent application fee.

If this were done the vast majority of software patents existing today would not have been granted. Which is probably why the system wouldn't do it.

You just described a patent lawsuit - both sides bring experts who vouch for their perspective in light of a judge who moderates and then rules on the debate from a general legal perspective.

It's significantly different from a patent trial. In this scheme the patent is not granted - and can't meaningfully affect the market - until it has passed some level of technical scrutiny by a (hopefully) neutral third party. In a trial the patent has already been granted, it's already affecting the work done by engineers, licensing fees may have been paid, and so on. And the evaluation by experts in the trial seems less likely to be neutral.

1. I think the obviousness of an idea might change throughout time. 2. What if one industry is dominated by two companies, in the sense that all the experts are employed by one or the other, then how could they be unbiassed?

Simple. Monopolies and duopolies shouldn't be awarded patents, which are just monopolies themselves. Why award monopolies to monopolies?

First you have to prove in court that they are a monopoly.

Nothing wrong with being a monopoly so long as you don't use that monopoly to restrict competition.

There's nothing illegal with being a monopoly. That doesn't mean it isn't wrong. I think in most cases (with exceptions like utilities), not having monopolies leads to a healthier market than having them.

1. I think the obviousness of an idea might change throughout time.

Sounds like an excellent reason not to allow someone to own the idea for 20 years.

Yes, or changing it from a binary system to a continuum that maxes out at 20 years. Software patent? 5 years. New drug - 20 years. New algorithm (can't patent math of course) 10 years.

I really don't think it would be that simple to make sure that process in unbiased. And that the additional costs wouldn't make patenting exclusive to billionaire companies.

But I very sincerely hope you're right :)

I agree a patent on simple gestures is simply not logical, but working within the constrains of the existing (and in my view, broken) system, I'd like to explore the idea of swipe to unlock, really how obvious is it?

This is a legitimate question, and I'm looking for real answers because these can be useful later on.

What is natural about swiping to unlock? The closest historical analogy I can think of is moving a bolt sideways on a door, but this is tenuous and certainly wouldn't extrapolate as the most natural/expected method of signalling to an electronic device that I'd like it to no longer ignore my touch gestures.

Would the closer analogy be the 'hold' slider as present on music players, including apple's own ipods? (And earlier devices.) Again, why is this the natural choice in lieu of a hundred other ways of telling the device that I'm ready to work with it.

Apple's love of skeuomorphs present many seemingly 'obvious' analogies, but they were usually rare or non existent before, so I'm curious to understand what is the line of innovation.

really how obvious is it?

I think you're approaching the question from the wrong angle. Whether the idea of swipe to unlock is obvious is irrelevant; ideas can't be patented. Only implementations can be patented. Do you think a programmer familiar with touchscreens and mobile development would have difficulty figuring out how to implement swipe to unlock when presented with the idea?

I've already stated that I view the patent system as broken. We agree here.

The question I'm asking is within this broken system. How natural is this gesture? It means without the apple iphone, would we still be using this gesture, would it still be considered obvious?

Given that the Neonode N1 had it first, I suspect that we would.

I think it probably would have come about not long after capacitive touchscreens became the standard input device for phones no matter what. It's the easiest gesture to make that is fairly unlikely to happen by accident when the phone is in a pocket.

The slide to unlock feature is a skeuomorphic design. The sliding lock is a very common lock on doors. I would consider it obvious for that reason alone.

I noted this above, but what is analogous between doors of a bygone era and accessing a touch-based device. Swiping a portion of the screen is the obvious component, but the skeuomorph isn't, I'm yet to see a good rationale for why this is more obvious than the many other opening simple-gesture skeuomorphs that could have been chosen.

I can think over many other more logical/closer skeuomorphs, which forms the basis of my question: was apple's choice a naturally occurring one, or their design choice. This isn't about patents, it's just a mind experiment as to understand if this is as straight forward as it seems in retrospect. (Because good design always appears obvious in retrospect.)

I'm yet to be presented with an answer to this, this is the crux of originality.

On a touch screen, you only have two primitive gestures from which all gestures are composed: Taps and swipes. Composition may be chronological or simultaneous (multi-touch).

This space of gestures is so narrow, that any idea within it can be explored in minutes, therefore any method that just combines these primitive gestures would be obvious.

Additionally, taps can accidentally happen (also obvious), and multi-touch is cumbersome, therefore swiping is the obvious gesture to use for unlocking.

Close to every single toilet door in public areas has a "swipe to unlock" system. It's not even the metallic bolt anymore. It's a block of plastic which you sometimes actually have to "swipe" (put fingers on and drag) rather than grab/pull. And I use it just about every day at work. It's not that dated / uncommon.

What is the patent office's mandate? It is not to grant trivial patents so companies can sue each other. Patents are supposed to be preferable to trade secrets because they make knowledge public in exchange for certain protections, and they encourage innovation in fields that require heavy investment.

It would not matter if slide-to-unlock remained a "trade secret" and the investment in making that feature is low enough that they would do it, even if they were never granted patent protection.

I think the problem is that it's impossible to determine what is obvious post-hoc. The next best thing is "hey, was someone thinking of this at the same time?"

Prior art is the easiest way to prove it.

It sucks :(

I'd suggest that any independent invention between filing and grant, that is, during the period when the patent is still secret, should automatically render the subject of the application to be obvious and unpatentable.

"We remain disappointed that Apple continues to favour competition in the courtroom over competition in the marketplace."

This. I do think that Apple is an innovative company which creates great products. But this does not in anyways justifies its actions in courtrooms all over the world trying to exploit a system that is clearly outdated.

I struggle to think of Apple as innovative - I consider them iterative. They DO make amazing, fantastic products. With few exceptions, however, their products tend to be things that are iterative improvements over already existing technology.

For example, iPhone and iPad - both of these concepts (smartphone and tablet) already existed. Only, a lot of them were shitty before Apple came along. They basically swept through and fixed everything that was wrong with these devices, but it's not like they came up with the idea for a tablet or a smartphone.

Apple doesn't create new product areas, it grabs an area and disrupts the status quo by offering significantly improved user experiences. In that pursuit they have really innovated in various areas, from UI design to manufacturing to logistics.

The fact they haven't created a new product area by themselves doesn't mean they don't innovate at all.

I would argue the iPad is a new product area.

Yes tablets had existed in the past but did any of them have scaled down, touch optimised UIs ? All I recall is full blown Windows which was probably the biggest reason they didn't succeed.

Yes tablets had existed in the past but did any of them have scaled down, touch optimised UIs?

Yes. None of them were widely commercially successful though. Products that come to mind include the Crunchpad (which I'm not sure actually made it to market), the Always Innovating Touchbook and the Pepper Pad. Of these, the Crunchpad was most similar to the iPad.

So no, Apple didn't invent a new product area with the iPad. They were just the first to find commercial success in that product area.

I guess it feels that way because tablets until the iPad were an insignificant stagnated market, whereas we did have markets for computers, phones, music players, etc.

So, I'd argue it's still a huge improvement over an existing product area, with the added bonus that it created a market. Products existed, but no significant market for them was available.

The iPhone's improvements over Blackberries and the like of the time were as impressive as the iPad's improvements over Windows tablets, for example, but one doesn't feel the iPhone a new product area.

Yes, I spent most of '99 writing a custom GUI system for a tablet. We were even considering ARM (StrongARM) for the CPU, but ended up with an x86 clone. The system was running Linux, NanoX and used Opera as the browser. The widget set was written from the ground up to make it light weight and touch friendly.

See e.g. http://www.linuxfordevices.com/c/a/Linux-For-Devices-Article...

It wasn't as sleek as the iPad, of course - battery, LCD and touch technology has come a long way, but it worked quite well.

And we were not first with a custom tablet UI (the article above compares it to the Ericsson Screen Phone for example: http://www.linuxfordevices.com/c/a/Linux-For-Devices-Article... )

Yes, true, Apple was the first one to put touch optimized, scaled down UIs on these tablets. But wasn't that exactly the original argument? Again, this is Apple taking an existing technology and polishing it to make create a great product.

Touch versus stylus wasn't iterative. It was revolutionary. "Swipe to unlock" wouldn't even have been practical in the prior resistive touchscreen/stylus paradigm.

Apple didn't invent the touch paradigm, not even for "swipe to unlock", as demonstrated by the Neonode N1 mentioned in the ruling.

They basically swept through and fixed everything that was wrong with these devices a.k.a. innovation.

I would also like to see Apple drop these suits and focus on making great products. But regarding that quote, I wouldn't say they favor competition in the courtroom over the marketplace, they're just doing both.

It's not as if the legal professionals working on these suits would otherwise be writing code for iOS features. And it's not as if Apple is just waiting for the outcomes of these suits, letting their products stand still in the meantime.

It infuriates me when I hear of these 'swipe to unlock' and 'pull to refresh' patents that actually get issued.

Defensive use only when patents as pathetic as these are used is all well and good. Wasn't the patent system created to protect real innovation?

A fucking slide to unlock gesture is not innovation.

Now let me go and patent that 'dance to pay' gesture.

> 'dance to pay' gesture

Strippers already have prior art on that one.

No, that's dance to receive. Having to do the work and pay is pretty unique, though it has probably been thought of before...

> A fucking slide to unlock gesture is not innovation.

Come on, yes the patent system needs reform but inventions do need to be protected/nurtured. Disregard the details here, and when I hear people having little rants it sounds like they advocate a kind of anarchist cookbook approach to innovation saying 'fuck it, you just make it better than them, who cares if the ting you worked on for 5 years was copied in 5 minutes by xyz, just make it better than them you litigious assholes'. Suppose I said this about your fucking homework? Hey, nice answers you put in there, I just copied them because they were obvious. Fuck you.

So yeah, you say swipe to unlock is obvious, tell me what the fuck you invented that was 'obvious'? Nope? Nothing huh? Nada? Oh well, guess that makes you an expert or something.

Patents aren't like copying someone's homework - that's copyright.

It's important to remember, there's no suggestion in any of these cases that anyone stole Apple's source code. There isn't even an allegation that they did any nontrivial reverse-engineering of an iPhone (it clearly wasn't necessary). Instead, at most, people saw a behavior and independently re-implemented it (and often might not have even seen the behavior first - many of these patents date far back before the iPhone - to the point where "infringing" implementations existed well before the iPhone), without studying the implementation at all.

That's like... getting a good grade because you wrote a paper on the Roman Empire and then accusing someone of cheating because they decided to write their own paper on the same subject (when they might not have even known the subject of your paper and even if they did it wasn't cheating).

>getting a good grade because you wrote a paper on the Roman Empire and then accusing someone of cheating because they decided to write their own paper on the same subject

No, what actually happened would be more like writing a brilliant paper on Roman Empire exploring it in a way that no one had before, and suddenly this guy who's been stuck for years suddenly "comes up with" a paper that appears to borrow heavily from yours.

What's the problem with that as long as it is plagiarized? If it actually borrows directly it just needs citations.

Good point, thank you. I guess my thought is that the slide to unlock implementation and idea is being copied. Calling it obvious (legal definition notwithstanding) is something I do not agree with, there are many ways that one could think to unlock such a device.

This is one of the better explanations I have seen for this patent game. I remember the same thing came up with Google vs. Oracle. In that Google did a near clean implementation (albeit those 9 lines and few test files) of JAVA. I think clean implementations should be made part of Patent proceeding. This won't be applicable to this case but still would go a long long way in stupid idea patents like these.

Following video of Neonode N1 (cited in the article) shows slide to unlock feature predating the iphone


I like the "yes" and "no" gestures.

Interesting how "prior art" can require a product to be released in a country to apply.

So, an international company can just see what is developed in another market, copy it and patent it in their own country?

I can understand this being the case in 1912, but we have the world wide web. Surely this concept is out of date?

As something I read the other day stated (I think it was that Stratfor monograph that was posted here, but I'm not very sure), it looks like the US is using its patent system as a means to protect their global interests against foreign companies/countries.

So, "if it's not here, you can still patent it" is a way to protect their interests, and then use that new patents all over the world.

But as this case proves, maybe that strategy works against smaller adversaries, but the ones with big pockets can still prove it wrong.

> So, an international company can just see what is developed in another market, copy it and patent it in their own country?

Multinational companies are global when things go nice, (moving money around the world, minimizing taxes, and so on), but then they remember their homeland when they can take advantage from that.

I'm not sure I understand what you're saying. You're saying a company can obtain a patent in the US and then use that patent in other jurisdictions?

Depends on the treaties signed by those countries.

I see a lot of comments saying swipe to unlock is obvious but I disagree. Just because something is simple doesn't mean it's obvious.

Now, that doesn't mean I think Apple deserves a patent for swipe to unlock but I do think people are mixing up the terms "obvious" and "simple".

First off: the use of "obvious" in the law is technical, and not a synonym for "simple". It means obvious to a learned practitioner in the field. If you handed a touchscreen UI to 100 handset designers in 2007 and asked them to come up with a unlock mechnism, you really think that none of them would have invented a slide gesture?

More broadly: I think your attitude is, in fact, exactly the problem. The existing patent regime tends to defaults to a judgement that if something "hasn't been invented" (worse: "the patent office wasn't presented with specific evidence that it has previously been invented") that it must be non-obvious.

Some things are obviously obvious, and I know it when I see it. Slide to unlock is obvious, period. Arguing otherwise invokes a universe where every tiny bit of nonsense in every product becomes someone's property.

Basically: if slide to unlock is not obvious, then everything is non-obvious and all hope is lost. Think this through -- I really don't think you want to live in that world.

I think it really is a great idea to unlock a touchscreen device and Apple deserves credit for that. But it doesn't add much to Neonode's implementation. It is basically the same swipe gesture. It just additionally has a UI element which moves as you move your finger, showing you the progress until the gesture is complete.

If "some things are obviously obvious" that implies there is an objective (or universal subjective) criterion for judging obviousness. What would this be?

Note that a lot of brilliance looks obvious ex post facto because one is looking up the branch and seeing only one branch instead of down it and the bifurcations.

No. You're arguing precisely the fallacy I tried to refute. The fact that you personally (or any given judge or patent officer) didn't think of something isn't reasonable grounds for making it non-obvious, which is a technical (legally "objective", if not logically) distinction.

So if you want to make that case, make it. Show me the "brilliance" in Slide-to-Unlock that makes it a unique flower worthy of protection. Don't hide behind platitudes.

Show me the "brilliance" in Slide-to-Unlock that makes it a unique flower worthy of protection.

It's not clear how one would do this. You could reply to any evidence presented "meh, not impressed." Your position is basically the mirror of the fallacy you're arguing against. The fact that you personally are not impressed doesn't make it non-obvious either. [oops, meant obvious]

Certainly it can be done for some inventions. The RSA cryptosystem patent comes to mind as something that even experts wouldn't have seen. Likewise much of the original work on image compression, etc... You don't have to look that far to find brilliance -- we're swimming in it. So again, that just sounds like a platitude to me. Rather than try to defend the nonsense, you're hiding behind the fact that you can't be proven wrong.

Or conversely: the world you apparently want to live in is one where "protectable innovation" is cheap and worthless. Every simple improvement on an existing system becomes someone's property. Do you really want that? I don't think you do -- I think, frankly, that you want every simple improvement made by Apple Computer to be protectable. Prove me wrong. I don't think you can. :)

RSA is an interesting example, because that definitely seems to fall into the territory of "you can't patent math". "Oh, it's just some multiplication, how hard can it be? You can fit the whole thing on a single whiteboard."

You're on a tangent. The point wasn't whether or not RSA is patentable (it was patented, obviously, though it was released to the public and would have expired by now anyway). It's that even among people ("experts in the field", legally) who understand modular exponentiation and can implement RSA correctly, the discovery of public key encryption represents a sublime moment of brilliance. I certainly never would have seen it, nor do I know anyone who claims they would have. Your point was that this kind of certainty didn't exist, and thus you're wrong (or else you're actually claiming that you think RSA was an obvious innovation, in which case let me compose myself before continuing...)

Even to someone (Hi!) who thinks all software patents are bad, RSA is patentable if anything is patentable. Slide to unlock, not even remotely so.

Patents aren't granted for brilliance, merely novelty. This is good - novelty is objective, "brilliance" or "obviousness" are not. Thus it makes sense to default novelty to being non-obvious and deal with the exceptions on a case-by-case basis. The forum democratic societies do this in is the court system.

Actually, novelty implies non-obviousness. So you can't possibly think novelty is objective but obviousness is subjective.

Well, the judge addressed this.

The Neonode N1 showed a padlock on its screen with the words "right sweep to unlock" when it was in its protected mode. A later version replaced the text with an arrow.

The judge said it would have been an "obvious" improvement for the developers to have offered users visual feedback in the form of a "slider" in the way that Apple later used.

He added that the concept of a "slider" was not new since it had already appeared in Microsoft's CE system.

As a result Apple's claim to the innovation was rejected.

The Neonode N1 already had a swipe to unlock, just that it lacked visual feedback. But from that point, providing feedback would have been obvious.

"Apple declined to comment on the specifics of the case.

Instead it re-issued an earlier statement, saying: "We think competition is healthy, but competitors should create their own original technology, not steal ours.""

This reaks of disastrous lazy damage control PR.

It'll probably work though.

I can't imagine someone falsely claiming to own real property that's actually public, suing someone over it and getting the case thrown out of court and then saying "We think going to the beach/park/nature reserve is healthy, but tourists should create their own original recreation areas and not steal ours" without being laughed at for sheer cheek but for whatever reason it works with "intellectual" property all the time.

Was that a statement from Apple or Neonode? ;)

Xerox PARC :-)

I don't think Apple do damage control PR. Just like with the antenna scandal with the iPhone 4: Apple just honestly tells you how they feel.

Apple never cared about "swipe to unlock", that's obviously silly. But they do feel (rightly IMO) that they've completely revolutionized how smart phones and tablets are made with everyone else just making cheap versions of what they came up with. They don't have a way to go to court and get people to stop making cheap rip offs of their stuff (so long as they're sufficiently different) so they're trying to find anything that will stick.

A ridiculous system will produce ridiculous interactions.

Is Baghdad Bob running their PR department now? Jesus.

I'm curious, can Neonode now sue Apple over the use of "swipe to unlock"?

They probably didn't believe this "technology" was worth a patent.

Just like Google probably would not have even contemplated patenting a search that draws on multiple data sources back in 2004 (it's actually kind of hard to conceive of search in the modern world that doesn't!) - but Apple came along and patented that.

I'm coming to a belief that the patent system's brokenness is hugely amplified by the presumption of validity given by the courts. You can either have a very rigorous up front patent examination system and a presumption thereafter of validity, or you can have a loose / quick review process and a balanced treatment in the courts (no presumption either way).

But you can't have a patent system where > 50% of patents fail to be proved valid when challenged in the courts (which is how the current system is) AND a presumption of validity.

If I could change one thing about the patent system, I would probably introduce a "vexatious litigant" style restriction that said if your patents fail to survive court challenges > 50% of the time then you lose the presumption of validity on ALL your patents. That would put an immediate stop to all these BS cases that are basically just trying to trip up / delay competitors with patents that they know will fail eventually under scrutiny.

> Just like Google probably would not have even contemplated patenting a search that draws on multiple data sources back in 2004 (it's actually kind of hard to conceive of search in the modern world that doesn't!) - but Apple came along and patented that.

Now just think about Google's (and Samsung's and HTC's and ...) probable reaction to discovering they can be blindsided by not patenting something they thought was obvious. If you think things are bad now, just wait a few years.

Apple's patent on multi-source search appears to involve search of local and remote sources. There are far older examples of multi-source search that live entirely on the server (e.g. MetaCrawler from '94)

But that just makes matters worse - once you have search over multiple sources, and you have search on the desktop, and you have web based search, the multiple sources bit is a small iteration.

In tennis and cricket, you get a set amount of challenges. Once you've used them up, you can't make any more.

Could the courts implement something similar for patent disputes?

We need an independent invention defense. If I can show I had no knowledge of your patent and came up with the idea on my own then it must have been obvious. If 2 other parties did also, then it must of been painfully obvious.

That's a cool idea, but how would you prove you came up with an invention independently if the patented device/software is already out there?

One idea: White room. Similar to copyright avoidance.

What would the world look like if these patent trolls got their wishes?

Like the 20th century, with IBM and Ma Bell. Or else every industry will be just like the current monopoly and duopoly dominated electric utility, POTS phone service, and ISP industries. Once a company has staked a place in a new industry, every one else will barred from competing.

People's Republic of China?

Well, this is interesting! This is a valid patent in the U.S., but not in the U.K. - I guess that the UK had a more sensible patent system. A real pity for consumers in the U.S. I guess.

I slid to unlock the bathroom door in elementary school in the early nineties. I fail to see how doing it on a phone is new or innovative.

I just hope that someone in a high enough position would roar "STOP THE MADNESS!". These kind of patent trials are only harming the end consumer. What kind of legislation even makes it possible to patent things like "Method of swinging on a swing" ( http://www.google.com/patents/US6368227 )?

Sorry, but I just simply can't understand why "swipe to unlock" can be a patent...

whooopeee, does this mean my HTC phone will now get rid of that stupid "pull ring to unlock"/"pull ring to answer call" crap?

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